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Wage and Hour Claims

UntitledFlorida follows standards that regulate child labor,[1] minimum wage, [2] overtime pay,[3] breaks, [4] and associated recordkeeping, among other wage-related areas. Florida law provides for the recovery of unpaid wages, including minimum wage. Florida also follows the federal Fair Labor Standards Act (FLSA). The FLSA minimum wage and overtime requirements apply differently to employees, depending on whether they are classified as non-exempt or exempt.[5]

Most claims in wage and hour litigation charge the employer with unpaid work, including unpaid overtime, minimum wage, not providing breaks or meals, and unpaid off-the-clock hours. According to NERA Economic Analysis, wage and hour settlements in 2014 amounted to $400 million and the aggregate amount paid for cases settled since January 2007 to March 2015 surpasses $3.6 billion. Most of the cases settled dealt with overtime violations, followed by breaks and employee misclassification, off-the-clock pay, and minimum wage violations, trailed by other areas.

The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) enforces the FLSA, and an employee or former employee can also seek redress through filing a lawsuit in court grounded on the employer’s violation of federal and/or state law.

Filing a Claim

Under Florida Law

State unpaid wages claims may be submitted to the Florida Department of Labor and Employment Security for an investigation. A claimant may also file a lawsuit in court to recover wages. If the claim is based on the Florida Minimum Wage Statute, F.S. § 448.110, the law requires that prior to bringing the claim (with the state agency or in court), the employee must work with the employer. The claimant must first notify the employer in writing stating their intent to sue. The notice must state the wages requested, the date(s) and hours for the alleged unpaid wages, and the total amount claimed. The employer has 15 calendar days from employee notice to either pay the claim or resolve the claim to the employee’s satisfaction. If the employee is not satisfied, he or she may then proceed to bring their case to court.

On the other hand, a claimant filing a lawsuit under F.S. § 95.11(4)(c) to recover unpaid wages is not required to abide by the employer notice and negotiation requirements prior to filing, which is a requirement solely under the Florida Minimum Wage Statute.

The Florida Minimum Wage Statute provides that lawsuits claiming a violation of the statute must be filed within four years from the date the claim arose, five years if the violation was willful. However, F.S. § 95.11(4)(c) provides for a statute of limitations of two years for the recovery of unpaid wages. This provision does not require that the claimant prove a violation of the Florida Minimum Wage Statute in order to prevail.

Under Federal Law

All FLSA claims must be filed with the U.S. DOL, which has regional offices across Florida. The claimant has two years from the date of the violation (or the date the employee learned of the violation) to file an administrative claim with the agency or a lawsuit. If the employer violation was willful, the deadline is extended to three years.

Damages and Penalties

Claims are often submitted as collective actions. Disputes are typically settled, although this does not prevent future individual private actions. A claimant can file a private lawsuit under FLSA to recover unpaid minimum wages, liquidated damages in an equal amount, penalties, attorneys’ fees and costs, and injunctive relief (e.g., to reinstate the employee in their job or prohibit certain employee conduct). However, the employee may not sue if he or she has been paid back wages under the supervision of the DOL’s Wage and Hour Division (WHD), or if there is an ongoing lawsuit by the U.S. Secretary of Labor to recover the wages.

The Florida Minimum Wage Statute explicitly provides for the same damages provided under FLSA. If the employer proves good faith, the court at its discretion may adjust the liquidated damages amount. A claimant may also sue under F.S. § 95.11(4)(c) to enforce an award of damages.

FLSA also penalizes an employer who retaliates against an employee for filing a complaint or for participating in a legal proceeding under FLSA. Willful conduct may be criminally prosecuted and fines up to $10,000 may be imposed. Repeated minimum wage violations are punishable by $1,000 per violation.

Additional FLSA penalties are imposed for the interstate commerce shipment of goods that were produced in violation of its minimum wage, overtime pay, child labor, or special minimum wage provisions.

Best Practices

Employees find that knowledgeable counsel can provide relief throughout the claim process, including the strategic selection and preservation of evidence necessary to support their claim, as well as deciding the lawsuit strategy (e.g., analyzing which law will be most favorable to support the unpaid wages claim.) They can also assess the case for additional violations that may occur in tandem with wage and hour violations, such as discrimination or breach of contract.

Employment law counsel may be a key asset to employers by helping them manage wage and hour liability, negotiating claims before they make it to an administrative agency or court, or defending claims at trial or before an administrative agency inquiry.

Whether you are an employer, employee, or independent contractor, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in wage and hour compliance, claim filing, negotiation, or defense and offer competent legal representation, if necessary. Click here to contact an attorney now.

[1] See Child Labor blog article for additional information.
[2] See Minimum Wage blog article for more detail.
[3] See Overtime Pay blog article for more detail.
[4] See Work Breaks blog article for more detail.
[5] See Exempt or Non-Exempt? Employee Classification under the FLSA blog article for additional information.

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